Current OLMS Director Jeffrey Freund announced on January 5, 2022 that OLMS was planning to step up enforcement of reporting and disclosure provisions for persuader activity and this sentiment is mirrored in an additional justification from OLMS in the NPRM: “The Department is acting because it has a clear interest in understanding the full scope of activities undertaken by employers that enter into agreements to persuade employees not to exercise these rights, including whether they benefit from Federal contracts.”
The reason for focusing the Form change on Federal contractors and subcontractors is based largely on Executive Order 13494: “See Executive Order (E.O.) 13494 (reiterating ‘the policy of the United States to remain impartial concerning any labor-management dispute involving Government contractors.’). Such Federal contractors are not permitted to receive reimbursement for the costs of engaging in those activities under the contract.”
What does this mean for us?
Even though the wording of the proposed change may seem insignificant, the implications are far-reaching, provided the OLMS does indeed step up its enforcement of reporting and disclosure provisions of Forms LM-10, as well as LM-20 and -21. As noted in earlier issues of this Update, many employers identified in 2021 LM-20s filed by persuaders haven’t yet filed their LM-10 which were due March 30, 2022. In many cases, the persuaders have attached electronic copies of the letters of engagement with the employer and the employer still hasn’t filed their LM-10. And in a few more cases, several persuaders who still itemize receipts from employers have identified non-filing employers, as well as the final payment dates and total amounts received—but still no LM-10s. Whether it’s a problem of inadequate staffing or competing resources, if OLMS is truly serious about this change, they need to make employers comply.
Turning to the potential of identifying government contractors, readers must realize that a surprising number of employers in the US are Federal contractors and subcontractors. Trucking and airlines haul cargo for the US government and military; warehouses and distribution centers ship groceries and other goods under contract to the US government; heavy and highway contractors build highways, airports, bridges, and dams under contract to the US government; insurance and financial service companies have many Federal government contracts. If the rule does become final, and LM-10 reports are filed by companies reporting these payments, there may be a whole new way to confront not only persuaders, but those employers who would seek to deny workers the union representation they desire.